Friday, October 28, 2011

I have not been on my bike in a week. I feel lazy and unhealthy. I could blame it on an injury, but that does not bother me too much when riding. Really, I think it is the darkness at 5am and the constantly dropping temps this time of year. Something about the feeling of a warm bed urges me to ignore the alarm and hibernate for another hour or so, and willingly, my mind and body agree.

So, I am in need of inspiration (and sun). Nothing like Le Tour to pump me up. And nothing like... "THE LOOK".

So, if like me, you have been in a funk, enjoy this clip and maybe it will encourage you to get back out riding, unless you liked Jan Ulrich, in which case this clip may encourage you to put your bike away for the winter and get fat and out of shape like he used to do in the off-season. Inspiring...

Friday, October 14, 2011

In an earlier entry, I posted about the coming fall season and discussed the use of lights on a bike. In that post I mentioned the "hours of darkness"- the time during which you are required to use lights on your bike. I also mentioned I had no idea what those hours actually are.

Well, I know you faithful reader(s?) have been on the edge of your seat waiting for an answer, and... I have one!

The hours of darkness are listed as "the period of time from one-half hour after sunset to one-half hour after sunrise and all other times when there is not sufficient natural light to render clearly visible any person or vehicle upon a highway or bicycle way at a distance of 500 feet."

So, there you go. If you read this, you can congratulate yourself for learning something today. Applause...

Tuesday, October 11, 2011

Usually I write about the dangers associated with cycling on city streets- cars, buses, defects on the road, etc. But, you need to be aware of your surroundings as there could be other dangers lurking depending on where you are biking. Like antelope, in South Africa.

Thursday, October 6, 2011

In case you care about your civil rights and in case you want to be able to hold individuals and companies that harm you, intentionally or unintentionally, then you should read the following and contact your Representative and tell them to oppose the following proposed legislation.

Why? Cause as I have said before, this is not about right versus left, or republican versus democrat. No... this is about good versus evil. This is about the citizens of Wisconsin versus the devil incarnate (Gov. Walker). This is about protection of the rights of the citizens of Wisconsin.

You have to understand that these bills do not just effect lawyers or democrats adversely. These proposed bills EFFECT EVERY SINGLE PERSON IN WISCONSIN, regardless of income, race or political affiliation.

Have a consumer problem with a bank- sorry, cannot help you because Guillotine Governor capped attorney's fees, so now you have to have a huge economic loss in order to make bringing the case viable.

Did and FDA approved drug kill a loved one? To bad, we cannot help you because the Guillotine Governor has granted immunity in this area. But condolences.

I have already discussed how his "jobs" bill/ legislation is just a cozy, inspiring front to what really is an all out attack on the citizens of Wisconsin. He wants to demolish your right to hold someone accountable when that person or entity harms you. He wants to sleep with big business and take the money they leave on the night stand after they are done with him. And this is all at the expense of the rights of the citizens of Wisconsin, who he and big business could not give a shit about. Screw accountability, make money!

Here are drafts of the proposed bills:

2011 − 2012 LEGISLATURE

2011 BILL

AN ACT to amend 895.047 (1) (intro.); and to create 895.0475 of the
statutes; relating to: providing immunity from liability to drug and
device manufacturers and sellers under certain circumstances.

Analysis by the Legislative Reference Bureau

This
bill provides immunity from liability to a manufacturer or a seller of a drug or
device for any claim based on strict liability for a defect in the drug or
device if the drug or device was approved by the federal Food and Drug Administration
(FDA) at the time the drug or device left the control of the manufacturer or
seller. The bill also provides immunity from liability to a manufacturer or
seller of a drug or device for any claim based on the failure to warn of the
risk of the drug or device if labeling for the drug or device was made
available to the consumer or the person who prescribed the drug or device and
the labeling was in compliance with applicable standards established by the FDA
at the time the drug or device left the control of the manufacturer or seller.

The
bill defines a “device” as an instrument, apparatus, implement, machine, contrivance,
implant, in vitro reagent or other similar or related article, including any
component, part, or accessory, which does not achieve any of its principal intended
purposes through chemical action within or on the body of a person or other animal,
is not dependent upon being metabolized for the achievement of any of its principal
intended purposes, and is: (a) recognized by the U.S. pharmacopoeia and national
formulary or official homeopathic pharmacopoeia of the United States, or any
supplement to either of them; (b) intended for use in the diagnosis, cure, mitigation,
treatment, or prevention of disease or other conditions in persons or other animals;
or (c) intended to affect the structure or any function of the body of persons or
other animals. The bill defines a “drug” as: 1) any substance recognized as a
drug in the official U.S. pharmacopoeia and national formulary or official
homeopathic pharmacopoeia of the United States or any supplement to either of
them; 2) any substance intended for use in the diagnosis, cure, mitigation,
treatment, or prevention of disease or other conditions in persons or other
animals; 3) any substance other than a device or food intended to affect the
structure or any function of the body of persons or other animals; or 4) any
substance intended for use as a component of any article specified in items 1)
to 3), above, but does not include gases or devices or articles intended for
use or consumption in or for mechanical, industrial, manufacturing, or
scientific applications or purposes. The bill defines a “manufacturer” as an
entity licensed or approved by the FDA to engage in the manufacture of drugs or
devices. The bill defines an “entity” as a corporation, partnership, or
association.

The people of the state of Wisconsin, represented in senate and
assembly, do enact as follows:

SECTION 1. 895.047 (1) (intro.) of the statutes, as created
by 2011 Wisconsin Act

2, is amended to read:

895.047
(1) LIABILITY OF MANUFACTURER. (intro.) In Except as provided in s. 895.0475,
in an action for damages caused by a manufactured product based on a claim of
strict liability, a manufacturer is liable to a claimant if the claimant establishes
all of the following by a preponderance of the evidence:

(d)
“Manufacturer” means an entity licensed or approved by the federal food and
drug administration to engage in the manufacture of drugs or devices,
consistent with the definition of “manufacturer” under the federal food and
drug administration’s regulations and interpreted guidances implementing the
federal Prescription Drug Marketing Act.

(2)
LIABILITY
OF MANUFACTURER OR SELLER; STRICT LIABILITY. Except as provided in sub. (4), a manufacturer
or a seller of a drug or device is immune from civil liability for any claim
based on strict liability for a defect in the design of a drug or device if the
drug or device was approved for safety and efficacy by the federal food and
drug administration at the time the drug or device left the control of the
manufacturer or seller. A drug or device approved pursuant to the procedures
under section 510 (k) of the federal Food, Drug and Cosmetic Act, 21 USC 360,
shall not be considered approved for safety and efficacy by the federal food
and drug administration for the purposes of this subsection.

(3)
LIABILITY
OF MANUFACTURER OR SELLER; FAILURE TO WARN. Except as provided in sub. (4), a manufacturer
or a seller of a drug or device is immune from civil liability for any claim
based on the failure to adequately warn of risk of a drug or device if labeling
for the drug or device was made available to the consumer or to the person who
prescribed the drug or device to the consumer and the labeling was in compliance
with the federal food and drug administration’s applicable standards for labeling
at the time the drug or device left the control of the manufacturer or seller.

(4)
EXCEPTION;
FRAUD.
Immunity under subs. (2) and (3) shall not extend to a claim brought against a
manufacturer or a seller of a drug or device if the federal food and drug
administration determines that the manufacturer or seller committed a fraud
against the federal food and drug administration with regard to the product at
issue in the claim.

SECTION
3.0Initial
applicability.

(1) The treatment of section 895.0475
(2) of the statutes first applies to a claim based on strict liability
commenced on the effective date of this subsection.

(2)
The treatment of section 895.0475 (3) of the statutes first applies to a claim based
on failure to warn of risk commenced on the effective date of this subsection.

(END)

2011 − 2012 LEGISLATURE

2011 BILL

AN ACT to create 814.045 of the
statutes; relating to: factors for determining the reasonableness of
attorney fees.

Analysis by the Legislative Reference Bureau

Under
current law, in certain civil actions a court may grant reasonable attorney
fees to a prevailing party or may be asked to determine whether attorney fees
sought by a party are reasonable. Under this bill, to determine whether to
award attorney fees and whether the attorney fees are reasonable, the court
must consider several factors.

Under
the bill, the factors that the court must consider include the time and labor
required by the attorney, the novelty and difficulty of the questions involved,
and the complexity of the case; the skills needed to perform the legal service
properly; the likelihood that the acceptance of the particular case prevented
the attorney from accepting other work; the fee customarily charged in the
locality for similar legal services; the amount involved in the legal dispute
and the results obtained; the fees granted in similar cases; the time
limitations imposed by the client or by the circumstances; the nature and
length of the professional relationship with the client; the experience,
reputation, and ability of the attorney performing the services; whether the
fee is fixed or contingent; and the legitimacy of any defenses raised in the
case.

The
bill also limits attorney fees to three times the amount of compensatory damages
awarded, except in cases where only nonmonetary relief is awarded or in cases
involving both compensatory damages and nonmonetary relief. The bill does not
place a limit on attorney fees in cases where only nonmonetary relief is
awarded, so long as the court considers the factors set forth in the bill. In
cases where both compensatory damages and nonmonetary relief is awarded, the
bill sets forth a presumption that a reasonable attorney fee is not more than
three times the amount of compensatory damages awarded, but allows a court to
determine that a greater amount is reasonable if the court considers all of the
factors set forth in the bill.

The people of the state of Wisconsin, represented in
senate and assembly, do

enact as follows:

SECTION 1. 814.045 of the statutes is created
to read:

814.045
Attorney fees; reasonableness. (1) Subject to sub. (2), in any action involving
the award of attorney fees that are not governed by s. 814.04 (1) or involving
a dispute over the reasonableness of attorney fees, the court shall, in determining
whether to award attorney fees and in determining whether the attorney fees are
reasonable, consider all of the following:

(a)
The time and labor required by the attorney.

(b)
The novelty and difficulty of the questions involved in the action.

(c)
The skill requisite to perform the legal service properly.

(d)
The likelihood that the acceptance of the particular case precluded other employment
by the attorney.

(e)
The fee customarily charged in the locality for similar legal services.

(f)
The amount of damages involved in the action.

(g)
The results obtained in the action.

(h)
The time limitations imposed by the client or by the circumstances of the action.

(i)
The nature and length of the attorney’s professional relationship with his or
her client.

(j)
The experience, reputation, and ability of the attorney.

(k)
Whether the fee is fixed or contingent.

(L)
The complexity of the case.

(m)
Awards of costs and fees in similar cases.

(n)
The legitimacy or strength of any defenses or affirmative defenses asserted in
the action.

(p)
Other factors the court deems important or necessary to consider under the circumstances
of the case.

(2)
(a) Except as provided in par. (c), in any action in which compensatory damages
are awarded, reasonable attorney fees may not exceed 3 times the amount of the
compensatory damages awarded.

(b)
In any action in which compensatory damages are not awarded but injunctive or
declaratory relief, rescission or modification, or specific performance is ordered,
reasonable attorney fees shall be determined according to the factors set forth
in sub. (1).

(c)
In any action in which compensatory damages are awarded and injunctive or
declaratory relief, rescission or modification, or specific performance is
ordered, the court shall presume that reasonable attorney fees do not exceed 3
times the amount of the compensatory damages awarded, but this presumption may
be overcome if the court determines, after considering the factors set forth in
sub. (1), that a greater amount is reasonable.

(END)

Also, check out this great article on the horrific impact these proposed will have if passed, which are similar to the bill passed in Michigan:

About Me

I am an attorney at the law firm of Aiken & Scoptur, S.C., a personal injury firm. I am also an avid cyclist and founder of the Aiken & Scoptur cycling team.
To date, our team has won zero races, mainly because we race each other for fun and have never entered an official race (though I won a sprint to a traffic sign against my friend Steve). If that changes, I will let you know. I can be contacted by phone at 414-225-0260, and email james@aikenandscoptur.com
Ride safe, enjoy the ride, see you on the road. Yay bikes!
(P.S.- Nothing on this site is intended to be legal advice. These posts are for informational purposes only.)